Right to freedom of thought, conscience and religion or belief

Page Content

This material is provided to persons who have a role in Commonwealth legislation, policy and programs as general guidance only and is not to be relied upon as legal advice. Commonwealth agencies subject to the Legal Services Directions 2005 requiring legal advice in relation to matters raised in this Guidance Sheet must seek that advice in accordance with the Directions.

What is the right to freedom of thought, conscience and religion or belief?

All persons have the right to think freely, and to entertain ideas and hold positions based on conscientious or religious or other beliefs. Subject to certain limitations, persons also have the right to demonstrate or manifest religious or other beliefs, by way of worship, observance, practice and teaching. Legislation, policies and programs must respect the right to freedom of thought, conscience and religion or belief, unless they clearly fall within one of the permissible limitations discussed below.

Where does the right to freedom of thought, conscience and religion or belief come from?

When do I need to consider the right to freedom of thought, conscience and religion or belief?

You will need to consider the right if you are working on legislation, a policy or a program that:

might restrict or interfere with the observance or teaching of a particular religion or set of beliefs, for instance by regulating conduct that might have this effect

requires a person to disclose their religion or belief

affects a person's ability to adhere to his or her religion or belief

subjects conduct that is required or encouraged by a particular religion or belief to criminal penalties

sets dress standards that do not accommodate religious dress or symbols

affects the right of the adherents of particular religions to observe holidays or periods of rest

relates to planning or land use that may make it difficult to use or establish places of religious worship

imposes eligibility requirements for government benefits that that cannot be met by the adherents of particular religions

regulates the teaching of children in a way that might undermine particular religions or beliefs, or

regulates conscientious objection to military service.

This list should not be regarded as exhaustive.

What is the scope of the right to freedom of thought, conscience and religion or belief?

Article 18 of the ICCPR protects the right to think freely and to entertain ideas and hold positions based on conscientious or religious or other beliefs. This entails protection against brainwashing or indoctrination. The right also protects the right to demonstrate or manifest religious or other beliefs, whether individually or collectively, and whether through worship, observance, practice or teaching.

The UN Human Rights Committee has interpreted religion to include theistic, non-theistic and atheistic beliefs, and has stated that the right includes the right not to profess any religion and belief. The right includes the right to adopt a religion or belief of a person's choice, including the right to leave a religion and convert to another.

The Government may not impose restrictions on the right to hold positions based on religious or other belief, nor may it impose religious or other beliefs. The Government may also be obliged to take positive steps, where necessary and appropriate to protect this right, where failure to do so may result in offensive attacks on religious beliefs.

The right to demonstrate or manifest religious or other beliefs requires the Government to recognise the right of persons to engage in religious worship, which would include the building and use of places of worship, use and display of ritual objects and symbols, observance of holidays and periods of rest, performance of ceremonial acts, adherence to dietary regulations, wearing of distinctive clothing and use of particular languages.

The Human Rights Committee has stated that, in certain circumstances, the right may include a right to refuse, on conscientious grounds, to participate in compulsory military service.

Article 18(4) allows parents the liberty to ensure the religious and moral education of their children in conformity with their own convictions. The Committee has stated that public school instruction in religion is permitted under article 18(4), as long as it is given in a neutral and objective way. Instruction in a particular religion or belief must be subject to exemptions that would accommodate the wishes of parents.

While the right to hold positions based on religious or other belief may not be restricted in any way, human rights law recognises that reasonable restrictions may be imposed on the right to demonstrate or manifest religious or other beliefs. Permissible restrictions and limitations are discussed further below.

Can the right to freedom of thought, conscience and religion or belief be limited?

Derogation

Under article 4 of the ICCPR, countries may take measures derogating from certain of their obligations under the Covenant 'in time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed'. However, the right to freedom of thought, conscience and religion is specifically excluded from the rights from which derogation is permitted.

Limitation

However, under article 18(3), the freedom to manifest religion or beliefs may be limited as prescribed by law and when necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others. The grounds for permissible limitations do not include national security expressly, although of course this may be an aspect covered of/covered by other express limitations. The Human Rights Committee has stated that limitations must be necessary to achieve the desired purpose, and must be proportionate to the need on which the limitation is predicated.

For example, the Committee has upheld a legal requirement for railway workers to wear protective headgear for safety purposes, even where that requirement precluded the wearing of a turban by a Sikh. In another case, the Committee found a violation where a university required a student to remove a headscarf worn for religious purposes.

Some Australian anti-discrimination legislation provides for exemptions for religious bodies. For example, the Sex Discrimination Act 1984 contains an exemption from the prohibition of discrimination on the grounds of sex, marital status, pregnancy or potential pregnancy for acts or practices by religious bodies and educational institutions established for religious purposes, where those acts or practices conform to the doctrines, tenets or beliefs of that religion or are necessary to avoid injury to the religious sensitivities of adherents of that religion. The Age Discrimination Act 2004 contains a similar exemption from the prohibition of discrimination on the ground of age for bodies established for religious purposes. The definition of discrimination in the Australian Human Rights Commission Act 1986 excludes any distinction, exclusion or preference in connection with employment of a person in a religious institution, if the distinction, exclusion or preference is made in order to avoid injury to the religious susceptibilities of adherents of that religion.

Which domestic laws relate to freedom of thought, conscience and religion or belief?

Section 116 of the Constitution provides:

The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.

Section 116 is not a source of personal rights and does not provide individuals with an avenue for legal redress. Decisions of the High Court make clear that the section does not amount to a constitutional guarantee of the right to freedom of religion and belief. It also cannot be used to defend breaches of general laws that do not discriminate against religion generally, against particular religious conduct or against conduct characteristic of a particular religion. The court has generally adopted a narrow view of the scope of section 116. For example, the court has held that a law which provided for financial aid to the educational activities of church schools was not a law for establishing a religion, even though the law might indirectly assist the practice of religion. Accordingly, the law was not in breach of section 116. For a more detailed discussion of the way in which the High Court has interpreted section 116, see the Australian Human Rights Commission report on Article 18 Freedom of religion and belief (below under 'Where can I read more about the right to freedom of thought, conscience and religion or belief?').

The Racial Discrimination Act 1975 can provide protection from discrimination and vilification to religious groups. The Act makes direct and indirect discrimination on the ground of race unlawful. It also protects against offensive behaviour based on race. If a religious group can also be classified as a racial or ethnic group, the Racial Discrimination Act would offer protection from discrimination and vilification. Religious discrimination is not, per se, made unlawful by the Racial Discrimination Act. However, the term 'ethnic origin' has been interpreted broadly in a number of jurisdictions to include Jewish and Sikh people.

What other rights and freedoms relate to the right to freedom of thought, conscience and religion or belief?

The right to freedom of thought, conscience and religion or belief may also be relevant to:

the prohibition on discrimination, the grounds for which include religion, in articles 2 and 26 of the ICCPR

the prohibition on advocacy of religious hatred that constitutes incitement to discrimination, hostility or violence in article 20 of the ICCPR

the right of religious minorities to enjoy their own culture and to profess and practise their own religion in article 27 of the ICCPR

the right to freedom of opinion and expression in article 19 of the ICCPR

the right to peaceful assembly in article 21 of the ICCPR

the right to freedom of association in article 22 of the ICCPR.

Articles from relevant Conventions

International Covenant on Civil and Political Rights

Article 18

Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.

No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice.

Freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.

The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions.

See also: CRC article 14; CERD article 5.

Where can I read more about the right to freedom of thought, conscience and religion or belief?